CoreNet Clears the Air About NYS's New Environmental law

A new state law that went into effect Dec. 3, 2008, makes New York the first state in the country to require property owners and landlords to notify their tenants of any test results showing toxic levels of indoor air contamination, according to Suzanne Avena, chair of the environmental practice group at Garfunkel, Wild and Travis in Great Neck, at the monthly meeting of the Long Island Chapter of the CoreNet Global Corporate Real Estate Network, held Feb. 12, at the Milleridge Inn. Corporate National Realty sponsored the breakfast presentation. The new law is intended to protect renters unknowingly exposed to vapor intrusion of hazardous chemicals in the environment found to exceed the guidelines of either the New York State Department of Health or the federal Occupational Safety and Health Administration. Under the law, vapor intrusion means indoor air contamination by volatile chemicals from contaminated soil and groundwater. The provision applies to owners of either residential or commercial property. Among the chemicals included in the law are tricholoroethylene (TCE), perchloroethylene (PCE), and tetrachloroethene (Perc), used in dry-cleaning. Failure to notify the tenants within 15 days could subject the landlord or property owner to fines of up to $500 a day. The new statute, Avena said, is "hard to digest" because "this law is drafted very inartfully." For example, she explained, it's unclear whether the law is retroactive or when the notification obligation ends. Nor is it clear who may request the test results or which test results must be reported. "You won't see a lot of enforcement right away," she said. Of particular concern, Avena noted, is that the first page of a lease or rental agreement must contain wording about the notification of test results. She advised owners and landlords to seek legal counsel to draft the appropriate wording and look into environmental insurance if a risk is suspected. One unintended consequence of this new law, she said, is that it could have a "chilling effect" on testing. "I recommend my clients don't voluntarily commit to this unless they do it under client-attorney privilege." The Long Island Chapter meets on the third Thursday of most months, 8-9:30 a.m., at the Milleridge Inn in Jericho.